There was a move to banish war altogether, back in 1928, when US Secretary of State Frank Kellogg and French Foreign Minister Aristide Briand agreed the Pact of Paris, known thereafter as the Kellogg-Briand Pact. It was ratified by the US Senate, which entered caveats to protect the right of self-defense and relieve the executive branch of any obligation to enforce the treaty by taking action against those who violate it. It remains in force today and – by virtue of Article VI of the US Constitution – represents the “supreme law of the land”.
Its provisions later found their way into the Charter of the United Nations, article 2 paragraph 4, which states that:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.
This is why the UN International Law Office was so confident, in the opinion quoted in last week’s column, that separate humanitarian law governing the conduct of war was now unnecessary, given that war had itself effectively been ruled out. But it also illustrates the limitations of a legalistic approach, in and of itself, because it takes no (or too little) account of relations of power.
If the legal norms that are supposed to prevent aggressive war are violated, who will enforce them? Who will punish the perpetrators? Perhaps the International Criminal Court? The problem is, the State Parties to the Rome Statute, establishing the ICC, have so far failed to agree on a definition of aggressive war. Actually they are being invited to re-agree, since there is already a serviceable and agreeably simple definition, adopted by the UN General Assembly in 1974: “The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression”.
It is, of course, a formula which is simple without being easy, since many of the countries that have signed the Statute are military allies of the United States, and must therefore remain available to be led into military engagements that would fit this definition – Yugoslavia 1999 and Iraq 2003 to name but two. So, the ICC is confined, for now, to issuing indictments against African leaders accused of crimes against humanity. There is no near-term prospect for the court to incentivise leaders with significant military force at their disposal not to deploy it when it suits them, even if their country has not been attacked first.
There were two normative responses to the World Wars of the 20th Century: one in favour of collective security, through institutional arrangements – the League of Nations, then the UN – and the other in favour of peace. In the immediate aftermath of global conflict, they overlapped, but now they are diverging. A great journalist, Patrick E Tyler of the New York Times (who revealed the infamous Pentagon memo, Defense Planning Guidance, the neo-conservative plan for post-Cold War dominance, back in 1992), coined an important concept in an article marking the worldwide anti-war demonstrations of February 2003, in 660 cities around the world.
In this, he posited the emergence of a second superpower: “global public opinion”, to set against the armed might of the Pentagon. Tyler is on to something here. Johan Galtung pointed out that most people, in most countries, were against both Saddam Hussein’s war on Kuwait that started in August 1990 and the US-led war on Iraq from January 1991, but that this opposition found little or no resonance in world media. By 2003, publics in some of the participant countries in the invasion of Iraq were in favour of joining in, though as in the UK that went very quickly into reverse once it transpired that there never were any ‘weapons of mass destruction’. Other countries supported the escapade militarily (Australia) or politically (Hungary) despite public opposition.
We are groping towards a characterization of these phenomena, which I’ve started to call – for want of something slicker – “the brute unresponsiveness of institutional frameworks”, applicable at a global, national and local level alike. The UN drew heavily on the great mass of world hostility to ‘Operation Iraqi Freedom’ to withhold its backing at the Security Council, but was powerless to stop it. Here in Australia, opinion is evenly split over the continuing troop presence in Afghanistan, and has mandated the withdrawal of the ‘Diggers’ from frontline duties in Iraq, but that doesn’t stop the Defense Force from going ahead with its biennial joint training exercise with the US, ‘Operation Talisman Sabre’, a rehearsal for the invasion of another country.
Hope for bringing about change rests with ourselves. If it cannot be legally disciplined, then the recourse to violence, in contravention of international law and/or in violation of humanitarian principles, must be socially disciplined instead. This is where ‘Kent’s binary’ offers to deconstruct itself. The techniques for media management, that are an integral part of post-modern warfare, speak to what the Chicago Tribune columnist, Bob Koehler, calls “Goliath’s vulnerability… the truth”. War is politically sustainable only to the extent that it keeps the truth about particular violations of humanitarian and human rights law away from the full glare of public exposure. What is underway is a definitional and representational struggle, and the key conceptual tool to narrate and engage in that struggle is framing. On Robert Entman’s influential definition:
“Analysis of frames illuminates the precise way in which influence over a human consciousness is exerted by the transfer (or communication) of information from one location – such as a speech, utterance, news report, or novel – to that consciousness… To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation”.
This accounts for the centrality of media in conflict – mechanisms for selecting and making salient certain aspects of reality are mechanisms of war or peace: hence, peace journalism. Part of the reality that peace journalism makes visible is the framework of international law, and the limits that should place on the conduct of parties to conflict; another is the outrage over violations that result in civilian death and suffering. Its traction is gained partly from the very inadequacy of existing institutional arrangements to ensure accountability.
As for the creation of new ones, well, to some extent, that job, too, may be one for all of us. The same logjam of national interests that blocks the ICC from taking on war as a crime in its own right also inhibits the UN Security Council from discussing the plight of Tamil civilians in Sri Lanka. It prevents the establishment of a criminal tribunal to investigate excesses in the attack on Gaza of 2008/9 and it leads states disgracefully to ignore the judgment of the International Court of Justice on the illegality of Israel’s apartheid wall which grabs yet more Palestinian territory.
In this last case, the point is, Israel should not be able to enjoy normal relations with the rest of the world as long as these offenses remain unaddressed. The author, Naomi Klein, led the call for sanctions on Israel, not, as she said, because it is the world’s worst human rights violator (which it isn’t) but because it depends to a large extent on trading relations. That constitutes, in strategic terms, a vulnerable point of leverage. The international Boycott, Divestment and Sanctions (BDS) campaign has been growing rapidly, especially in Europe, as a result, and the campaign for an academic boycott of Israeli universities (though not contacts between individuals) is steadily building. Hey, perhaps it’s time to stop playing Sri Lanka at cricket?
These are efforts to build institutional arrangements ‘from below’. The UN Security Council, the ICC and so on are forms of diplomacy, known in ‘the jargon’ as Track One diplomacy, since they emanate from, and operate at, inter-state level. The anti-war movement in global public opinion is an example of what the same jargon calls “multi-track diplomacy”, something we can all engage in. And its focus is the effort to instill a new norm in handling conflict: peace by peaceful means, as the only way to deliver real human rights for the world’s peoples.